*1 ger; Villa, III. Wino; Oscar also known as Acosta, Richard Shorty; also known Finally, Plaintiff that he contends Roger Preciado, Cartoon; also known as prejudiced the court’s failure to bifur Villa, Psycho; Jaime also known as liability damages phases cate the Taylor, Yogie; Charles also known as trial. District courts have “broad discretion Bustamonte, Uriel deciding Caps; also known as whether to sever for trial issues Mora, M; and the exercise of that discretion will Michael be set also known as M & only clearly aside City Gallardo, abused.” Easton v. Cyclone; David also known as Boulder, Colo., (10th Polus, Troy Neal Thomp also known as of Cir.1985) 42(b)), (citing Fed.R.Civ.P. cert. de son, Evil; Lara, also known as Frank nied, 479 U.S. 93 L.Ed.2d Spooky, Defendants, also known as (1986). Our review of the indi record catеs, however, that Plaintiff did not ask the proceedings. district court to bifurcate the Mazzini, Lucky; Marcos also known as Therefore, argu we decline to address his Najar, Vincent Stalker; also known as (In Walker), ment. See Walker v. Mather re Delatorre, Bone, Jason also known as J Cir.1992) (stating Defendants-Appellees, appellate that federal generally court will not appeal consider issue on Albuquerque Journal, an was not Intervenor. court). that, raised in trial We note even No. 97-2277. if the pro court could have bifurcated the ceedings on its own motion under Federal Appeals, United Court of States Rule of Civil Procedure we see no indica Tenth Circuit. tion that it abused its doing discretion Jan. York, so. (holding F.3d at 958 Cf. district court did not abuse its discretion denying motion to bifurcate because movant
did not significantly preju that she was show diced).
Accordingly, we affirm the
denials of judgment Plaintiffs motions for a
as a matter of law and trial. new
AFFIRMED.
UNITED STATES of America
Plaintiff-Appellant, GONZALES, Cougar;
Cesar also known as Lopez,
Hector also Gabriel known as
Shaggy; Martinez, Uriel also as known
Duke; Juarez, Cesar also as Pe known
lon; Azcuenaga, Gustavo also known as
Mono; Delcid, Luis also as known
Stranger; Guevara, Ernest also known Yogi; Barboa,
as Russell also known Chino; Acosta, John also known as Lef
ty; Byron Zamora, Trig also known as concerning any cause our determination superfluous. evi dence such makes further discussion *2 charged participation were
dants drive-by shooting and murder of rival street gang member Patrick Garcia. April law enforcement officers
conducting investigation requested a war- rant for the arrest of the witness. allegedly The witness was associated with gang, key Sureño 13 was a witness to Garcia, involving events the murder of and gang’s was witness to the structure of the organization drug trafficking RICO and to gang. crimes committed members of sought, At the time the warrant arrest drug pro- the witness was in a rehabilitation gram a probation condition of for an earli- er unrelatеd state crime. The state court and, accord, issued the warrant on its own “escape providing added an clause” that she juvenile arrested and held detention home Upon ap-
unless: law enforcement officer witness], prehension/arrest of if—but [the only cooperates fully truthfully if—she and accurately completely and and reveals to Albuquerque Police Detective Richard Lewis, Special Agent Gary ATF and/or Ainsworth, Attorney Assistant U.S. and/or English, Special Tom U.S. Assistant and/or Williams, Attorney Reynaldo David N. Assistant United States Montano her informa- (John Attorney Kelly, (if J. United States Attor- any) in tion and involvement aforesaid Braun, ney, Assistant and James R.W. Unit- crimes, only arresting of- then —but then — brief), Attorney, him on the ed States her at the ficers are authorized to leаve NM, Albuquerque, appellant. for currently residing, report place she and (Gail Court/Judge fur- the aforesaid to this for Billy Jeffrey R. J. Buckels Evans brief), Albuquer- regarding him her arrest and Blackburn with on the ther instructions NM, que, appellees. for charges. aforesaid Record V. Doc. Ex.A. ANDERSON, McKAY, Before Albuquerque Lewis and Police Detective BRISCOE, Judges. Circuit Agent ATF went to the rehabilita- Ainsworth BRISCOE, Judge. Circuit facility Washington in the state of 1,May on 1996. At meet with the witness appeals The Ainsworth, request of Lewis and suppressing court’s order statements made program director of the rehabilitation barring a witness and present during thirty fifteen min- calling criminal the first the witness several part, part, meeting. trials. We affirm reverse the witness utes Lewis told proceedings. and remand for further arrest, they had a wаrrant for her showed support of the arrest her the affidavit grand jury A federal returned an indict- warrant, rights. and advised her of her charging alleged ment numerous probation talk officer. witness asked to to her RICO, “Sureño 13” members with RICO con- officer, probation After she talked to her murder, murder, spiracy, conspiracy to at- in the affidavit witness stated the information tempted racketeering, murder aid of trafficking substantially and that she want- narcotics offenses. Several defen- was correct (1957). The court investigation. At S.Ct. in the cooperate ed an meeting, produced the witness point-during the that the witness be some ordered and, for counsel, at the arrest warrant asked to look English but with defense interview time, escape Ap- clause. the first noticed status, stating: the witness’ misrepresented later, Lewis proximately three weeks control.... We have not under our “She’s Ainsworth, by English and ATF accompanied nothing her.” Record XIII to do with McCall, to the rehabili- Supervisor returned not order the Consequently, the court did witness, facility again interview tation witness, produce the but incrimina- further statements made and she government facili- merely requested that the ting defendants. meeting the witness and de- tate a between district court May the federal On fense counsel. *4 government give defense the ordered 24, the witness was os- October while On con- to all witnesses under its counsel access “ government issued tensibly missing, the still ‘[t]he The order stated protection. trol or Although it is clear payment first to her. its the defense рrocedure is to allow better the whereabouts of the government the knew directly from the witness to hear counsel witness, give counsel ac- willing to talk to the it failed to defense he would be whether pres- attorney, either alone or the defense ordered. The witness cess to the witness as ” attorney’ (citing States v. 2,1996. ence of his United At a turned herself on December (4th Cir.1979)). 1176, Walton, 1180 government stat- hearing on December the II, further Doc. 715 at 5. The order Record another rehabili- ed the witness would enter provide government was to provided the program the witness was ordered tation and wit- [its] between encounter[s] “face-to-face psychological treatment. to seek Id. nesses and defense counsel.” misrepresented English again the witness’ subject investigator A located the defense to the federal district court on Janu- status mid-July if and asked she would witness 28, 1997, ary stating the witness “is not knowledge talk him about her of defen- whatsoever, my and her under control charged crimes. The wit- dants’ roles the to me at are not even known whereabouts investigator she would talk to ness told fugitive “was a for this time.” He stated she attorney.” him after she talked to “her She period, a time and that time she is not since a complained and defense called McCall XXII at 54. our control.” Record under harassing trying to investigator her and explained Defense counsel witness English told her she talk to her. McCall anyone. probation reporting regularly The to the did have to talk to next on 20, 1997, day, again February gov- called McCall to com- the witness court. state On plain investigator. McCall and about providing ernment was sanctioned for not facility English went to the rehabilitation a reasonable time witness statements within signed coop- a following day and the witness had been interviewed after witnesses government agreement with the on eration gov- ordered the government. The court July signed 1996. After witness available for de- ernment to make witnesses cooperation agreement, English instructed positions. attorney who had her to call the defense subject deposed by de- witness was investigator him she did engaged the and tell fense counsel on March representatives. not want to talk to defense English had available to him the arrest war- team mеm- English also threatened defense witness, provide a rant for the he failed to they continued to prosecution bers prior deposi- government copy to defense counsel “harass” witnesses. During deposition, defense counsel tion. facility The witness left the rehabilitation copy English responded a asked for August probation, in violation of her on possi- saying provide he would as soon as and a arrest warrant was issued. On state deposition, English At the end of the ble. 4, 1996, court September the federal district said, look, my all *5 circumstances embrace “both the character witness’ statements istics of the accused and the details of the matter, As an initial we must de Schneckloth, interrogation.” 412 U.S. at cide whether it was to allow defеn 2041; Kerby, 93 Lucero v. 133 challenge dants to the voluntariness of the (10th Cir.1998). F.3d 1311 Relevant subject witness’ statements to Lewis suspect’s age, include the intelli factors Obviously, Ainsworth. defendants cannot education, gence, length of detention subject any to vindicate violations of the seek questioning, physi of use or threat rights. witness’ Fifth Amendment See Clan punishment, warmings cal Miranda whether (10th Cooper, ton v. 1158 given, physical were the accused’s and men Cir.1997). Instead, point to defendants must characteristics, tal the location of the inter rights. violations of their own constitutional rogation, police offic and the conduct of the Although rights Id. defendants’ were no Lucero, F.3d at 1311. ers.1 133 way affected Lewis and Ainsworth obtain statements, subject ing the witness’ see deciding initially supprеss wit- In to Fitzsimmons, Buckley 20 F.3d 794-95 testifying ness’ statements and bar her from (7th Cir.1994) (“Overbearing tactics violate trial, at court focused almost the district person being interrogated of the to exclusively escape language on the clause coercion.”), subsequent free from use of particular, the arrest warrant. In the court potentially implicate those statements could blatantly concluded the warrant “was tai- Clanton, process rights. defendants’ due See testimony” lored to obtain information and specifically, F.3d 1158. More defen escape from the witness because she “could process implicated rights dants’ due would be [only] divulged everything arrest if she she subject mak witness was coerced into Record knew about the Garcia homicide.” ing statements and those statements false VII, Notably, the Doc.2011 at 10. court’s against were admitted defendants at trial. findings factual initial order contained no proceed Id. to We therefore determine whether, concerning when the court, whether or witness by the as concluded subject escape provision. were coerced. informed of the clause witness’ statements against reject government’s argument do We that a offensive when used an accused 1. magically any become less so when exerted non-defendant witness’ statement that incrimi- against subject suppression only at 1158. Conse- nates a defendant is to a witness.” F.3d product quently, whether a if the of torture or the standard for statement was the voluntary beyond the same whether we the level of coercion statement was extreme coercion third-party required dealing suppression own are with a defendant or defendant’s Clanton, we witness. confession. As noted in "methods “[wjhether actually shown [the witness] motion for Pursuant reconsideration, prior full court considered allowed to warrant the district read testimony Lewis and the supplemental cooperate her decision to Govern- led concerning what events witness significance, [the little witness’] ment is of coop- to confess and the witness’ decision testimony deposition ... indi- at her sworn the wit- Lewis testified he informed erate. fully aware of the ‘choice’ cates that she was for a warrant “she was under arrest ness presenting to her when she the officers were Mexico,” of New issued out of the State cooperate.” decided to Id. charges in the Record XXV at read the ap on reviewing After the record witness, her to read warrant allowed peal, the district court’s factual we conclude warrant, and support affidavit in of the clearly regard errone findings this were rights. the witness of her Miranda informed generally defer to a trial ous. Lewis, According responded witness determinations, credibility Man see by asking probation officer. to contact her States, ning v. United spoke by telephone proba- After she to her Hunnicutt, (10th Cir.1998); officer, “that she informed Lewis Cir.1998), F.3d the dis substantially in the affidavit was information rejected trict court in case Lewis’ testi cooperate and that she wished to correct out-of-hand, though no mony even there was investigation.” Id. at 778. [him] [the] particular, In Lew evidence to contradict it. during the “[s]ometime Lewis testified that point, [they] after had is’ that the witness was not aware interview after this time, together period speaking for a until escape been clause after she admitted at the witness] asked to look warrant agreed [the to the facts in the affidavit and again.” response, gave Lewis her the Id. cooperate was not contradicted the wit warrant, including portion contain- entire contrary, testimony. To the the wit ness’ escape clause. did not indicate when she first learned ness *6 testimony escape clause and her can deposition, In her the witness tеstified she complete harmony in understood when Lewis and Ainsworth asked therefore be read might charged testimony. to talk to her that she with Lewis’ are thus left with the We conspiracy testified and other crimes. She conclusion that the district court had no evi- agents right informed her of her to have dentiary finding support for its that the wit attorney, an but she declined “[b]ecause [she] fully ness “was aware of the ‘choice’ attorney.” an didn’t feel needed Rec- [she] presenting officers were to her when she VII, Doc.2019, Although ord Exh. A at 16. VII, cooperate.” decided to Record Doc.2055 provided she testified the warrant she was at 59. cooperated not to be removed she Having rejected the district court’s agents, testify specifically to she did not finding that the witness was aware of the escape in when she first learned of the clause escape prior clause to her admission and Moreover, the warrant. she could not re- nothing agreement cooperate, to we find else agents member what the told her before she persuade in the record to us her statements giving her started statement. Although repeated were coerced. the court denying In motion for ly “juvenile,” referred to the witness as a affirming to reconsideration and its decision eigh uncontroverted facts indicate she was suppress the witness’ statement testimo- years at the time teen old of arrest and ny, rejected the district court Lewis’ testimo- any entitled to be treated as an adult. In ny escаpe shown the that the witness was not event, suggestion the court’s that the witness prior agreeing cooperate. clause to to speak to to should have been allowed her particular, the court stated: “As with other See, parents e.g., United States is incorrect. testimony, assertions his the Court did not (en (9th Cir.1998) Doe, v. credible on find Detective Lewis to be (no banc) juve process requirement due that responding point, due to his demeanor to parents nile’s be notified for waiver of Mi questions posed to him defense counsel at valid); VII, rights Farley, 86 randa to be Stone hearing.” Record Doc.2055 at 58- (7th Cir.1996) (neither Ultimately, 717 federal the court concluded that F.3d
1291
Padilla,
ju
rights.
requires
law
See United States v.
508
statutory
constitutional
nor
77, 81-82,
obtaining
prior to
L.Ed.2d
parents be notified
U.S.
123
venile’s
—
denied,
U.S. -,
(1993);
confession),
117
Payner,
447
cert.
(1997). Further,
731-32,
U.S.
S.Ct.
65 L.Ed.2d
S.Ct.
(1980). Further,
court found the witness
although the district
we conclude
court’s
decision, with
only minutes to make her
supervisory powers
“had
did not authorize it to
attorney
judge,”
... or a
we
help from an
no
suppression
order
of the witness’ statements
findings
nothing coercive from these
any
find
upon
perceived
based
vio-
light
of all of the circum
when considered
Fourth
lations of the witness’
Amendment
VII, Doe.2055 at 54. The
stances. Record
rights.
testimony clearly indi
deposition
witness’
suppression
order
district
she had the
cates she understood
part
finding
also based
on its
attorney,
knowingly
with an
but
consult
witness’ statements had been coerced. Be-
Further,
is no
not to do so.
there
chose
cause we havе concluded the
did
wit
authority
support
the notion that the
obtaining
improperly
not act
the witness’
speak
judge prior
with a
ness was entitled to
statements,
approve
any
we cannot
sanc-
uncontroverted
making
her decision. The
imposed by the court
on that basis.
pressed
the witness was not
facts indicate
footing in
We find firmer
the dis
decision,
given
but instead was
an immediate
finding
trict court’s
request,
speak by
opportunity,
at her
intentionally
knowingly and
violated discov
probation
telephone with her
officer.
ery
misrepresented
orders
witness’
Ultimately,
conclude the
wit-
the court
status and whereabouts to
and the
ness’ statements were not coerced
defense counsel.
Fed.R.Crim.P. 16
concluding
court erred
otherwise.
inapplicаble
is
here because it does not re
suppression
reverse the court’s
We therefore
quire
to make its witnesses
extent it was based on its con-
order to the
interviews,
help
“a
available for defense
involun-
clusion that
the statements were
analysis by
point
ful
of reference for our
tary.2
authority
describing the district court’s
remedy
analogous
infractions in
Supervisory Power
circumstances.” See United States v. Rus
suppression
The district court’s
order was
sell,
Cir.),
1510-11
cert.
F.3d
part
based in
on the exercise of its
also
—
denied,
——,
U.S.
supervisory powers.
specifically,
More
*7
(1997). District
have
L.Ed.2d 1026
courts
subject
suppression
court concluded
of the
imposing
on
broad discretion
sanctions
testimony
trial
a
witness’ statement and
was
orders,
parties
discovery
who violate
and we
perceived government
sanction for
impose
a
to
sanctions
review court’s decision
warrant,
obtaining
misconduct
arrest
choice of sanction for abuse of discre
its
statements,
allegedly coercing the witness’
Ivy,
v.
83 F.3d
tion. United States
preventing the
from
and thereafter
defense
(10th Cir.),
denied, - U.S. -,
cert.
contacting her.
(1996).
,
L.Ed.2d
Un
S.Ct. 253 136
may
prohibit
include
der Rule
sanctions
The district court concluded the ar
ing
party
introducing
from
the disobedient
particular,
In
it
rest warrant was invalid.
evidence not disclosed earlier. See United
concluded the warrant was federal
charac
(10th
Wicker,
v.
1295
See,
Russell,
413, 417,
e.g.,
109 F.3d at
Taylor,
at
defеndant.
484 U.S.
exist at all. See
Eckert,
446;
1511-13;
Chappee
the
F.2d at
(emphasizing that
defen
936
646
Cir.1988).
Vose,
(1st
justify
faith alone would
bad
31-32
dant’s willful
prosecution
suffered
suppression even
the
a court determines that a sanction is
When
would
violations,
if a lesser sanction
prejudice
justified by
discovery
no
or
bad faith
the
Russell, 109 F.3d
any prejudice);
minimize
analysis
change
should not
accord-
structural
in
“if
faith were
(stating that
bad
at 1512
party
the criminal
whether
the
is
volved,
would have been
exclusion
defendant,
plaintiff,
prosecution,
the
a civil
or
feasibility
the
of a
regardless
prejudice
of
or
analytical
a civil defendant. The
difference
continuance”);
la
States v. de Cruz-
United
a crim-
between these situations occurs when
(1st Cir.1995)
Paulino,
rights
inal
im-
defendant’s constitutional
are
(“Where
noncompliance is the
governmental
plicated by
suppression
of his witness.
faith,
undesig-
result of bad
exclusion
instance,
question
In that
is whether
may
appropriate.”);
be
nated evidence
cf. preclusion is so harsh a sanction as to offend
Tansy,
F.2d
Cir.
Eckert v.
Taylor,
the Constitution. See
484 U.S.
1991) (determining
faith of defen
that bad
646.
the abuse of
S.Ct.
Because
compliance
of
with alibi statute
dant and ease
demanding
discretion standard is much less
witness);
proffered
supported exclusion of
one,
than the constitutional
the district
Cueto,
F.2d
in
discretionary
court’s
determination
this
(10th Cir.1980) (stating
suppression
of
compelling
more
than the
case is even
Su-
justified
of
not
without evidence
evidence was
Taylor.
preme Court’s decision
While
exculpa
withholding of
government’s willful
Taylor implicated overriding Sixth Amend-
material).
tory
concerns,
only
case affects
ment
Thus,
majority’s analysis,
contrary to the
government’s ability to
one witness
present
dispositive.
are not
the three Wicker factors
major-
prosecution
in its
of Defendants. The
emphasized
Russell what
This court
ity’s analysis
only
give
fails to
the district
factors “do not
stated in Wicker: The Wicker
court’s decision the deference it deserves but
discretion.”
dictate the bounds of the court’s
applies
seemingly more lenient stan-
also it
Russell,
specifical-
ernment with effectively punishes the defen-
misconduct view, and, my inequitable. For
dant reasons, respectfully I dissent
these the case for consideration
would not remand
of less severe sanctions. RIENHARDT, Art
William
Plaintiff-Appellee, Kelly,
Hilda KELLY and Tom
Defendants-Appellants, Klein,
Marvin and Don Defendants. Gard 96-2161,
Nos. 97-2143. Appeals,
United States Court of
Tenth Circuit.
Jan.
here it was with
notes
“Oh
hearing
motion for
conducted a
on a defense
V,
Exh. H. De-
along.” Record
Doe.
pursuant
disclosures of witness identities
States,
stating
affidavits
the lack
77 fense counsel filed
v.
353 U.S.
Roviaro
United
1289
voluntary
im-
a statement
is
the warrant and affidavit
Whether
copies
ability
the witness.
subject
their
to examine
paired
question
a
novo
law
de
re
view, although specific undеrlying findings of
moved to
Subsequently, three defendants
fact are reviewed for clear error. A state
to the Garcia mur-
all counts related
dismiss
involuntary
ment “is
if the
misconduct,
a
for
der as
cause[d]
[witness’]
arrest warrant was used unlaw-
conduct
will to be ov
arguing the
statements and
fully to coerce the witness’
capacity
and ‘his
erborne
self-determina
testimony.
court con-
The federal district
critically impaired.’”
invalid and was used
cluded the warrant was
(10th Cir.1996)
McCullah,
making statements
to coerce the witness into
Bustamonte,
(quoting
Schneckloth
incriminating herself. The court
further
218, 225-26,
U.S.
S.Ct.
36 L.Ed.2d
found the
had violated court or-
—
(1973)),
U.S. -,
cert. denied
misrepresentations
ders and had made
(1997).
,
S.Ct. 1699
counts,
court. The court did not dismiss
freely
whether
statement was
suppressed
but
instead
the witness’ state-
voluntarily given,
the courts consider
call-
ments and barred the
totality
of the circumstances. Arizona v.
at trial.
her as witness
Fulminante,
279, 285-86,
U.S.
(1991).
1246,